Title II of Law 12/2012, of December 26, of urgent measures to liberalize trade and certain services, regulates the support for the export of defense material by the Ministry of Defense.

This support is articulated through two legal relationships; a horizontal one, from Government to Government, between the applicant Government and the Spanish Government, and a vertical one, between the Spanish Government (through the Ministry of Defence) and one or more supply companies.

The horizontal relationship is based on the conclusion of a contract between the Government of Spain and another foreign government, as provided for in Article 7.1.g of Law 24/2011 of 1 August, on public sector contracts. in the fields of defence and security. Under that contract, the foreign government requests the Government of Spain to carry out the hiring actions in the name and representation of that foreign government, supervision, logistical support and technology transfer, necessary for the delivery to the same of a given defense material, in the terms contained in article 8 of Law 12/2012, of December 26.

For its part, the vertical relationship is developed through the activities that, under the previous order, will carry out the Ministry of Defense in the internal legal traffic applying the mechanisms in force public sector administration, as well as the system of control of economic and financial management and the system of penalties provided for in the budgetary rules.

This royal decree aims to develop the activities of the Spanish Ministry of Defense in the process established in Law 12/2012, of December 26.

At the same time, all those occasions where the general public sector procurement rules provide for a flow of funds between a public administration and a contractor are regulated, so that flows of funds In the case of the Spanish Government, the Spanish Government is not linked to the Spanish Public Finance, but to a fund account established by the foreign government in order to respond to the obligations it has assumed. This ensures that the payment of interest on late payment, compensation and any other disbursement to be made to the contractor as a result of the performance of the contract will be borne by the foreign government.

As an element of closure, following the example of the comparative law, the reimbursement of expenses incurred to the Ministry of Defense has been regulated by the aforementioned account of the situation of foreign government funds, such as The support provided will be carried out at no cost or benefit to the Ministry of Defence.

This royal decree is issued under the provisions of the 12th final provision of Law 12/2012, of December 26.

During its processing the project was reported by the Ministries of Foreign Affairs and Cooperation, Finance and Public Administrations and Economy and Competitiveness and by the Advisory Board of Contracting Administrative.

In its virtue, on the proposal of the Minister of Defense, in agreement with the Council of State and after deliberation of the Council of Ministers at its meeting of the day of January 24, 2014,

DISPONGO:

Article 1. Purpose.

This royal decree is intended to establish the provisions for the development and application of Title II of Law 12/2012 of 26 December on urgent measures to liberalize trade and certain services.

Article 2. Negotiation of the contract between governments.

1. The actions leading to the conclusion of contracts between the Government of Spain and another foreign government, hereinafter contracts between governments, provided for in Article 6 of Law 12/2012 of 26 December, will be the responsibility of the Secretariat of State of Defense.

2. Contracts between governments shall be signed by the Minister of Defence or by the person in whom the latter delegate, representing the Government of Spain.

Article 3. Contract terms between governments.

1. Contracts between governments may include, inter alia, the following:

a) The subject of the contract between governments. Benefits to be requested from the Ministry of Defence.

b) A court or arbitration court competent to resolve discrepancies between the contracting parties.

(c) The legal regime to which the contract will be submitted.

d) Funding, guarantees, and timing of funds.

e) Measures to monitor and monitor the contract between governments. Establishment of a Monitoring and Establishment Commission for its tasks.

f) Contract Vigency.

g) Contract resolution causes.

h) Creation of an Armament and Material Program, if any.

i) Creation of the Program Office, if applicable, its operation and settlement.

j) Creation of an Office of Support to the client country, if applicable, its operation and settlement.

k) Reimbursement of expenses incurred to the Ministry of Defense.

l) Financial and tax aspects, in accordance with current regulations.

m) All conditions on transports.

n) Contract modifications.

o) Intellectual property.

p) Contributions from governments.

q) Applicable security aspects.

2. In any event, the contract must necessarily include points (a), (b), (c) and (d) of paragraph 1.

3. In the case of contracts between governments, it may be noted that the Government of Spain reserves the right to complete or partial termination of the contract between governments for reasons of public interest.

4. The existence of the funds necessary to finance the acquisition of defence equipment by a foreign government, in the account provided for in Article 5, shall be a necessary condition for the execution of the relevant contracts with the companies domiciled in national territory.

Article 4. Contract Monitoring Committee Government to Government.

If in the contract between governments the creation of a Follow-up Commission is agreed, the members corresponding to the Spanish governmental party will be appointed by the Secretary of State of Defense.

Article 5. Fund situation accounts to finance the acquisition of defence equipment by a foreign government.

1. The account of the situation of funds set out in Article 12 of Law 12/2012 of 26 December 2012 shall be opened in the contracted financial institution as provided for in paragraph 3 of that Article. The opening of the account will be notified to the foreign government, so that it can begin to meet the calendar of funds situation that is agreed upon.

2. For each contract between governments, a fund account shall be opened, which shall be used exclusively for the contract in question. This same scheme shall apply to any other account whose opening is necessary for the performance of the contract.

3. Each government contract shall establish its own funds status schedule, as well as the initial deposit payable to the foreign government. The document for requesting the corresponding credits will be the call for funds.

4. In the event of a change of credit institution by new contracting, the account of the situation of funds of the former entity shall be transferred to the new entity and the change shall be communicated to the foreign government and to the General Secretariat of the Treasury and Financial Policy. of the Ministry of Economy and Competitiveness.

5. The expenses incurred to the Ministry of Defense during the execution of these contracts, upon their acceptance by the foreign government in the terms provided for in the contract, shall be loaded into the account of the situation of funds and entered into the Treasure.

Article 6. Weapons and material programs.

1.If the contract results in the creation of a programme of arms and equipment, it shall be governed by the rules applicable to national programmes, with the exception that the material for which the supply is contracted shall not pass to be part of the public administration's assets.

2. The creation of a Programme Office or an Office of Support for the supply to the client country can only be agreed upon under the condition that the foreign government runs with all the expenses of the offices that are created.

The Office of the Program will be established in the same way as those that are regulated for the armament and material programs of the Ministry of Defense. The foreign government may create a liaison office in permanent connection with the Office of the Program.

3. The Secretary of State of Defence shall appoint, where appropriate, a Head of Programme and designate the organic framework of the Programme Office. It will have the functions and responsibilities defined for this figure in the Ministry of Defense regulations for national programs. It is for the Head of Programme to check the contractual milestones and their communication to the relevant contracting authority for approval and payment where appropriate.

Article 7. Economic-financial control.

1. The General Intervention of the Defense will carry out the control of the economic-financial management by means of the analogue application of the previewed in Law 47/2003, of November 26, General Budget, on the administration of the quantities located in the fund situation accounts and in all that corresponds to the procurement with Spanish companies in the defence sector.

Article 8. Contracts with Spanish companies in the defence sector.

1.Without prejudice to the provisions of the contract between governments, and in all the provisions of Title II of Law 12/2012 of 26 December 2012, the conclusion, execution and resolution of contracts for the execution of the actions provided for in Article 8.1 shall be governed by the recast text of the Law on Public Sector Contracts, approved by Royal Legislative Decree 3/2011 of 14 November.

2. The contracts entered into by the Ministry of Defense with Spanish companies in the defense sector as a result of a contract between governments, will be in the name and representation, and for account and risk of the foreign government.

3. In compliance with the provisions of Article 9 of Law 12/2012 of 26 December, the transfer of ownership will be made directly from the contractor to the foreign government.

4. The Ministry of Defense, in the terms agreed upon in the contract between governments, will reserve the right to resolve contracts with companies with domicile in national territory for reasons of public interest, with the compensation that in their Case may correspond according to the terms of the case.

Article 9. Condition of exporter.

1. For the purposes of Law 53/2007 of 28 December 2007 on the control of the external trade in defence and dual-use material, the implementation by the Ministry of Defence of the activities described in Article 8.1 shall not alter the condition of exporter of the contractor.

2. In particular, the system of authorisation and registration laid down in Chapter II of Law 53/2007 of 28 December 2007 shall apply. Without prejudice to the prior registration, the authorisation shall be requested and obtained at the time of the actual export in the terms of the contract concluded with the Ministry of Defence.

Single additional disposition. Application of other regulations.

The precepts of this royal decree shall apply without prejudice to the provisions of Law 53/2007 of 28 December 2007 on the control of foreign trade in defence and dual-use material.

Final disposition first. Amendment of Royal Decree 945/2001 of 3 August on the financial management of certain funds for the payment of purchases of military equipment and services abroad and international agreements signed by Spain in the field of the Ministry of Defence's powers.

A new paragraph (g) is added to Article 1.1 of Royal Decree 945/2001 of 3 August 2001 on the financial management of certain funds for the payment of purchases of military equipment and services abroad and International agreements signed by Spain in the field of the Ministry of Defense, with the following wording:

" (g) Managing deposits of foreign countries in the fund situation accounts created under Article 12 of Law 12/2012 of 26 December 2012 on urgent measures to liberalise trade and certain services. "

Final disposition second. Competence title.

This royal decree is dictated by the provisions of Article 149.1.3. of the Constitution, which attributes exclusive competence to the State on international relations.

Final disposition third. Regulatory development.

The Minister of Defense is empowered to lay down the rules for the development and implementation of this royal decree in the field of its competence.

Final disposition fourth. Entry into force.

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

Given in Madrid, on January 24, 2014.

JOHN CARLOS R.

The Minister of Defense,

PEDRO MORENES EULATE